Conjugal Partnership Medero-Zayas et al v. Roman et al

Filing 22

OPINION AND ORDER re 14 Motion to Dismiss: GRANTED. The section 1983 claims alleged in the complaint are DISMISSED WITH PREJUDICE. Plaintiffs' supplemental claims under article 1802 are DISMISSED WITHOUT PREJUDICE. Judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 07/28/2011. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
HOMAYRA MEDERO DIAZ, et al.,
Plaintiffs,
CIVIL NO. 11-1211 (FAB)

v.
JOHN ROMAN, et al.,
Defendants.

OPINION AND ORDER
BESOSA, District Judge
Before the Court is defendants’ motion to dismiss, (Docket
No. 14).

Having considered the arguments contained in that motion

and plaintiffs’ opposition, (Docket No. 15), the Court GRANTS the
motion to dismiss, (Docket No. 14.)
DISCUSSION
I.

Background
A.

Procedural Background
On

(“Medero”),

February
Freddie

24,

Jose

2011,

Zayas

plaintiffs

(“Zayas”),

and

Homayra
their

Medero
conjugal

partnership filed a complaint alleging claims pursuant to 42 U.S.C.
§§ 1983 and 1985, as well as article 1802 of the Puerto Rico Civil
Code (“article 1802”), P.R. Laws Ann. tit. 31, § 5141.
No. 1.)
Roman

(Docket

Plaintiffs bring these claims against defendants John

(“Roman”),

Jose

Figueroa-Sancha

(“Figueroa”),

Migdalia

Civil No. 11-1211 (FAB)

2

Santiago-Torres (“Santiago”), and Jose Perez-Falcon (“Perez”). See
Docket Nos. 1, 5, & 6.1
On June 13, 2011, defendants Roman, Santiago, and Perez
filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6).

(Docket No. 14.)

Defendants argue:

(1) that

plaintiffs have failed to state a claim under 42 U.S.C. § 1983
(“section 1983”); (2) that the factual allegations in the complaint
fail

to

establish

the

asserted

violations

of

plaintiffs’

constitutional rights; (3) that Zayas lacks standing to assert
section 1983 claims; and (4) that the claims in the complaint are
barred by the relevant statute of limitations. (Docket No. 14.) On
June 30, 2011, plaintiffs filed a response, arguing:

(1) that the

complaint alleges constitutional violations sufficient to state a
claim pursuant to section 1983; and (2) that their claims are not
time-barred as a result of the “continuing violation” doctrine.

1

The complaint names other individuals as defendants,
including Puerto Rico Police Department officers whose first names
are unknown, and completely anonymous defendants.
(See Docket
No. 1.)
There is no indication on the docket, however, that
plaintiffs have served process on any of the defendants other than
those listed in the body of the opinion. In light of the fact that
well over 120 days had passed since the filing of the complaint,
the Court ordered plaintiffs to show cause why the claims against
defendants who have not yet been served should not be dismissed
without prejudice pursuant to Federal Rule of Civil Procedure 4(m)
(“Rule 4(m)”).
(Docket No. 18.)
Although plaintiffs filed a
response to that order, (Docket No. 20), the Court’s conclusion
below that all federal claims in the complaint are time-barred
obviates detailed analysis of whether plaintiffs have established
good cause to avoid dismissal without prejudice pursuant to Rule
4(m).

Civil No. 11-1211 (FAB)

3

(Docket No. 15.) On July 8, 2011, Roman, Santiago, and Perez filed
a reply.
B.

(Docket No. 19.)
Factual Allegations in the Complaint
Medero and Zayas are married and parents of five minor

children, identified in the complaint by the initials FJZA, YMNM,
SMZM, JAZM, and JZM.

(Docket No. 1 at ¶¶ 9-10.)

At the time of

the events described in the complaint, defendants were officers of
the Puerto Rico Police Department (“PRPD”) assigned to the Bayamon
Area.

Id. at ¶ 11.
On or around September, 2008, Medero became aware that

her daughter, SMZM, had come into contact with internet addresses
which hosted sexually explicit content.
investigation,
objectionable

Medero
material

determined
was

another

Id. at ¶ 17.

that

the

minor,

Upon further

source

of

identified

in

the
the

complaint by the initials KF, who is the stepdaughter of defendant
Roman. Medero spoke with Roman regarding their children’s behavior
at the PRPD station in Bayamon, to which Roman was assigned at the
time.

Id. at ¶ 18.

attention,

Roman

victimized

Medero

As a result of bringing the issue to Roman’s

and
and

other
her

members

of

family

with

his

family

hostility,

vandalism, and obscene and disparaging remarks.

repeatedly
ridicule,

Id. at ¶ 19.

In response to the alleged victimization, Medero filed a
complaint at the Bayamon Sur PRPD station with officer Jennifer
Vargas (“Vargas”).

Id. at ¶ 20.

No further action was taken by

Civil No. 11-1211 (FAB)

4

Vargas, or any other officer at that station regarding Medero’s
complaint.
Medero’s

Id.

The Roman family’s conduct continued despite

complaint,

and

as

a

result,

Medero

filed

a

second

complaint at the same police station with another PRPD officer. Id.
at ¶ 21.

No further action was taken by any officer regarding

Medero’s second complaint.

Id.

In response to that inaction and

the continuing conduct of the Roman family, Medero filed a third
complaint, in writing, to Lieutenant Santiago, a higher ranking
officer of the PRPD.

Id. at ¶ 22.

At the time she filed that

complaint, she requested a copy of the complaint from Lieutenant
Santiago, but he refused to provide one.

Id.

No further action

was taken by any officer regarding the third complaint.

Id.

Around January 15, 2009, another of plaintiffs’ children,
YMNM, received numerous insulting and threatening text messages on
her cellular phone.

Id. at ¶ 23.

YMNM later determined that the

messages had originated from LF’s cellular phone; Lf is another
member of the Roman family.

Id.

Medero then called the Bayamon

Sur PRPD station and requested that a patrol car come to her house
to take her complaint regarding the incident.

Id. at ¶ 24.

Although Medero repeatedly called the station, no patrol car
arrived at her house.

A patrol car did arrive, however, at Roman’s

house and took a complaint against YMNM.

Id.

After being

questioned by Medero, the officer who arrived at Roman’s house took

Civil No. 11-1211 (FAB)

5

a cross-complaint against LF.
on that cross-complaint.

No PRPD officer took further action

Id.

After observing that no action had been taken, Medero
contacted Lieutenant Bernabe, a higher ranking PRPD officer, who
reassigned the case to a different PRPD officer for investigation.
Id. at ¶ 26.

Despite that reassignment, no further action was

taken on Medero’s complaint.

Id.

Medero continued to follow up

diligently on the status of her complaints, but the Roman family’s
harassing conduct continued, escalating to threats of death and
violence.

Id. at ¶ 27.

In response to the escalating severity of

the conduct, Medero filed yet another complaint with an officer
named Lopez.

Id. at ¶ 28.

On February 16, 2009, Medero sought and obtained a
protective order against the Roman family in Commonwealth court.
Id. at ¶ 29.

A hearing was held on July 22, 2009, during which

Officer Cruz, who was supposed to appear as a witness against LF,
recanted his prior statements and gave testimony which portrayed LF
as the victim, and YMNM as the perpetrator.

Id.

As Medero and

YMNM exited the courtroom to secure counsel, court marshal Migdalia
Santiago-Torres, LF, and LF’s mother, Ana Fontan, assaulted and
physically restrained YMNM.

Id. at ¶ 30.

When Medero tried to

free YMNM, both were handcuffed, placed under arrest, and sent to
separate holding cells.

Id.

Migdalia Santiago-Torres then filed

formal assault and criminal contempt charges against Medero, for

Civil No. 11-1211 (FAB)
which

she

was

facility.

incarcerated

6
for

nine

days

at

a

correctional

Id.
On September 11, 2009, Officer Gonzalez, who was assigned

to the Bayamon Norte PRPD station, served Medero, through her
husband, with a summons to appear in court on September 15, 2009,
to face the assault charges made by Migdalia Santiago-Torres.
at ¶ 31.

Id.

The witness who appeared to testify against Medero was

Officer Daisy Rosario, who was not present on the day the assault
allegedly occurred.
II.

Id.

Legal Analysis
A.

Rule 12(b)(6) Standard
When considering a motion under Federal Rule of Civil

Procedure 12(b)(6) (“Rule 12(b)(6)”), a “‘court must view the facts
contained in the pleadings in the light most favorable to the
nonmovant and draw all reasonable inferences therefrom . . . .’”
Id. (quoting R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182
(1st Cir. 2006)).

“[A]n adequate complaint must provide fair

notice to the defendants and state a facially plausible legal
claim.”

Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 11 (1st

Cir. 2011).
When faced with a motion to dismiss, “[a] plaintiff is
not entitled to ‘proceed perforce’ by virtue of allegations that
merely parrot the elements of the cause of action.”

Id. at 12

(quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950

Civil No. 11-1211 (FAB)
(2009)).

Any

7

“[n]on-conclusory

factual

allegations

in

the

complaint [, however,] must . . . be treated as true, even if
seemingly incredible.”

Id. (citing Iqbal, 129 S.Ct. at 1951).

Where those factual allegations “‘allow[] the court to draw the
reasonable

inference

that

the

defendant

is

liable

for

misconduct alleged,’ the claim has facial plausibility.

the
Id.

(citing Iqbal, 129 S.Ct. at 1949).
“Affirmative
limitations,

may

be

defenses,
raised

in

such
a

as

motion

the
to

statute
dismiss

of

under

[Rule 12(b)(6)], provided that ‘the facts establishing the defense
[are] clear on the face of the plaintiff’s pleadings.’” Trans-Spec
Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 320 (1st Cir.
2008) (quoting Blackstone Realty LLC v. FDIC, 244 F.3d 193, 197
(1st Cir. 2001)).

“Where the dates included in the complaint show

that the limitations period has been exceeded and the complaint
fails

to

sketch

a

factual

predicate

that

would

warrant

the

application of either a different statute of limitations period or
equitable estoppel, dismissal is appropriate.”

Id.

Civil No. 11-1211 (FAB)
B.

8

Prescription of Federal Civil Rights Claims2
Defendants argue that the claims alleged in the complaint

are time-barred.
actions

which

(Docket No. 14 at 24-28.)
allegedly

led

to

the

They claim that “all

supposed

constitutional

violations . . . occurred between the years 2008 and 2009, the last
of which” fell on September 15, 2009.

(Docket No. 14 at 25.)

Factoring in the relevant statute of limitations for the claims
alleged in this case, defendants state that plaintiffs’ opportunity
to bring those claims expired on September 15, 2010.

See id. Given

that the complaint was filed on February 24, 2011, defendants
conclude that the claims alleged therein are untimely.

See id.

“[I]t is well-established in this circuit – that the
relevant statute of limitations for civil rights claims in Puerto
Rico is one year.” Vistamar, Inc. v. Fagundo-Fagundo, 430 F.3d 66,
69-70 (1st Cir. 2005); see also Rodriguez-Garcia v. Municipality of
Caguas, 354 F.3d 91, 96 (1st Cir. 2004); Nieves v. McSweeney, 241
F.3d 46, 50-52 (1st Cir. 2001) (applying common prescription

2

Roman, Santiago, and Perez also argue in their motion to
dismiss that Zayas lacks standing to bring some of the section 1983
claims in this case. (Docket No. 14 at 28-31.) Having examined
the complaint, it does appear that Zayas did not personally suffer
some of the constitutional violations alleged in the complaint for
him to be a proper plaintiff for claims based on those injuries.
See Sanchez-Nuñez v. P.R. Elec. Power Auth., 509 F.Supp.2d 137, 151
(D.P.R. 2007); (Docket No. 1.) As discussed below, however, it
appears that all of the section 1983 causes of action in the
complaint are time-barred. Thus, the Court need not comb through
all of the alleged constitutional violations and specifically
identify the appropriate plaintiffs for each claim.

Civil No. 11-1211 (FAB)

9

standard to related claims under section 1983 and section 1985).
Although

federal

civil

rights

claims

borrow

that

statute

of

limitations from Puerto Rico law, “[i]t is federal law . . . which
determines when the statute of limitations begins to run.”

Moran

Vega v. Cruz Burgos, 537 F.3d 14, 20 (1st Cir. 2008) (citing
Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir. 2007)).
“Section 1983 claims generally accrue ‘when the plaintiff knows or
has reason to know of the injury on which the action is based,’ .
. . and a plaintiff is deemed to know or have reason to know ‘at
the time of the act itself and not at the point that the harmful
consequences are felt.’”
at

5)

(emphasis

in

Id. (quoting Marrero-Gutierrez, 491 F.3d

original)

(internal

citations

omitted).

Therefore, the one-year statute of limitations for actions brought
under section 1983 “begins running one day after the date of
accrual, which is the date plaintiff knew or had reason to know of
the injury”.

Gonzalez Garcia v. P.R. Elec. Power Auth., 214

F.Supp.2d 194, 200; Benitez-Pons v. Commonwealth of Puerto Rico,
136 F.3d 54, 59 (1st Cir. 1998).
In response to defendants’ argument regarding the statute
of limitations, plaintiffs do not contest that the injuries which
form the basis of their claims occurred well over a year prior to
the filing of the complaint, but rather state that “[t]he actions
and omissions complained of continue to this date, and therefore
constitute

continuing

violations

which

are

not

time

barred.”

Civil No. 11-1211 (FAB)
(Docket No. 15 at 5.)

10
Plaintiffs’ brief opposition rests on a

misunderstanding of the “continuing violation” doctrine.
Docket No. 15 at 5.)
auspicious

for

(See

“Although the name of the doctrine may sound

late-filing

plaintiffs,

it

does

not

allow

a

plaintiff to avoid filing suit so long as some person continues to
violate his rights.”

Perez-Sanchez v. Public Building Auth., 531

F.3d 104, 107 (1st Cir. 2008) (emphasis in original).

Its purpose

is rather “to allow suit to be delayed until a series of wrongful
acts blossoms into an injury on which suit can be brought.’”

Id.

(quoting Morales-Tañon v. P.R. Elec. Power Auth., 524 F.3d 15, 18
(1st Cir. 2008)).
Although the complaint alleges a series of harassing
acts, those allegations do not appear to merit application of the
continuing violation doctrine.

Plaintiffs do not allege or argue

that the conduct complained of was of such a nature that it had to
accumulate over an extended period of time to form a cognizable
constitutional violation.

(See Docket Nos. 1 & 15.)

That the

injuries alleged in the complaint were clear to plaintiffs at the
time they occurred is amply demonstrated by Medero’s numerous
complaints to the police regarding the alleged harassment.
Docket No. 1 at ¶¶ 17-31.)

(See

Moreover, none of the actions alleged

in the complaint occurred at a time that would serve to anchor any
prior conduct within the appropriate limitations period for this
case.

See id.

Simply arguing in their opposition that the

Civil No. 11-1211 (FAB)

11

“actions and omissions continue to this date,” does not convert the
alleged injuries into “continuing violations” and save plaintiffs’
claims from the statute of limitations.

See Perez-Sanchez, 531

F.3d at 107; (Docket No. 15.)
Plaintiffs highlight no other circumstances that would
justify tolling or resetting the limitations period once it began
to run.

(See Docket No. 15.)

Neither is it apparent from the

factual allegations in the complaint that any such action is
appropriate.

Thus, it appears that the latest date on which the

one-year statute of limitations applicable to plaintiffs’ claims
could have commenced was September 16, 2009, the day after the last
alleged

constitutional

violation.3

See

Gonzalez

Garcia,

214

F.Supp.2d at 200. Given that plaintiffs did not file the complaint
until approximately seventeen months after that date, their federal
civil rights claims are time-barred.
Although the motion to dismiss raising the statute of
limitations defense was filed only on behalf of Roman, Santiago,
and Perez, the Court finds that prescription applies to plaintiffs’
federal claims against all defendants.

Courts in this district

have dismissed time-barred claims on their own motion “where the

3

The Court notes that there are several constitutional
violations alleged in the complaint and that the occurrence of each
discrete injury would have started its own respective prescriptive
period. See Nieves, 241 F.3d at 52. Given that the claim based on
the latest of those alleged constitutional violation is precluded
by the statute of limitations, it follows that any claim based on
an earlier injury would likewise be time-barred.

Civil No. 11-1211 (FAB)
Court estimates

that

12
the

amending the complaint.”
Rico, 688

F.Supp.2d

plaintiff

may

not prevail,

even

See Feliciano v. Commonwealth of Puerto

41,

44

n.3

(D.P.R.

2009)

(citing

Garcia

Rodriguez v. Laboy, 598 F.Supp.2d 186, 196 (D.P.R. 2008)).
framed in

the

motion

by

to

dismiss,

the

statute

of

As

limitations

argument is not cabined to factual allegations pertaining to Roman,
Santiago, or Perez, but rather addresses the time-barred nature of
plaintiffs’ complaint as a whole.
respond

to

that

argument,

Plaintiff had an opportunity to

but

failed

to

demonstrate

any

circumstance or additional factual allegation that would preclude
the

clear

application

of

the

one-year

prescriptive

applicable to section 1983 claims in Puerto Rico.

period

Accordingly,

plaintiffs’ remaining section 1983 claims against all defendants
are DISMISSED WITH PREJUDICE.
C.

Supplemental Claims
Defendants

also

request

that

the

Court

dismiss

plaintiffs’ claims under article 1802 of the Puerto Rico Civil Code
for lack of supplemental jurisdiction.

(Docket No. 14 at 31.)

Indeed, the jurisdictional basis to maintain those claims in this
Court has been undermined by the dismissal of plaintiffs’ federal
claims. Accordingly, plaintiffs’ article 1802 claims are DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3).

Civil No. 11-1211 (FAB)

13

III. CONCLUSION
For the reasons described above, the motion to dismiss,
(Docket No. 14), is GRANTED.
the

complaint

supplemental

are

claims

The section 1983 claims alleged in

DISMISSED
under

WITH

article

PREJUDICE.

1802

are

Plaintiffs’

DISMISSED

WITHOUT

PREJUDICE.4
Judgment shall be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, July 29, 2011.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE

4

On July 26, 2011, the Court ordered Attorney William
Melendez-Menendez, counsel for plaintiffs, to notify his clients
that he has been suspended from the practice of law in this Court
for a period of two years and cannot continue to represent them.
(Docket No. 21.) The Court’s order required Mr. Melendez-Menendez
to advise plaintiffs of his suspension, as well as to provide them
with a copy of the suspension order and the Magistrate Judge’s
Report and Recommendation, no later than August 1, 2011. Id. By
the same deadline, Mr. Melendez-Menendez shall also notify
plaintiffs of this Opinion and Order and advise them that, pursuant
to Federal Rule of Civil Procedure 59(e), they will have twentyeight days after the entry of judgment to file any motion for
reconsideration, Fed.R.Civ.P. 59(e) or thirty days to file an
appeal. Fed.R.App.P. 4(a)(1).